In a major setback to the AAP Government, the Delhi High Court (HC) on Thursday held that the lieutenant-Governor (l-G) was the administrative head of the national Capital and termed the Delhi Government’s contention that he was bound to act on the advice of the Council of Ministers was “without substance”. However, the court ruled that the l-G is bound to act on advice of the Council of Ministers on the appointment of special public prosecutors.
The special provisions incorporated for Delhi by constitutional amendments do not “dilute” the constitutional provision which gives the national Capital the status of Union Territory, the HC ruled.
“In view of this fundamental difference in the powers conferred on a Governor of State and the l-G of NCT of Delhi, it is not possible to hold that the l-G is bound to act only on the aid and advice of the Council of Ministers.”
Reacting to the development, the Delhi Government said it will challenge the HC verdict in the Supreme Court.
Bringing to an end the tussle between the Arvind Kejriwal-led Delhi Government and Raj Niwas, the Division Bench of Chief Justice G Rohini and Justice Jayant Nath dismissed the AAP Government’s plea challenging the Centre’s May 21, 2015, notification giving absolute powers to l-G Najeeb Jung to appoint bureaucrats in the national Capital.
“The special constitutional provision Article 239AA dealing with Delhi does not dilute the effect of Article 239 which relates to the Union Territory and hence, concurrence of the l-G in administrative issues is mandatory,” the Bench said in its 194-page judgment.
“(In) the l-G of NCT of Delhi, the discretion provided is wider than the discretion that may be exercised by the Governor of a State under Article 163(1) in view of the expression except in so far as he is, by or under any law, required to act in his discretion employed in clause (4) of Article 239AA,” the Bench said.
Delhi being the national Capital has vital institutions like Parliament, Supreme Court, Army headquarters, foreign diplomatic missions and international organizations which give it a special status for governance under the lG, the Delhi HC said.
However, the lG is bound to act on advice of Ministers on special public prosecutors’ appointment, it said.
The court also quashed several notifications issued by the Chief Minister after returning to power last year, saying they were illegal as they were issued without the lG’s concurrence.
The Bench also did not accept the AAP Government’s contention that the lG is bound to act only on the aid and advice of Chief Minister and his Council of Ministers with regard to making laws by the legislative Assembly under Article 239AA and termed it “without substance”.
The court ruled, “The matters connected with Services fall outside the purview of the legislative Assembly of NCT of Delhi... Therefore, the direction in the impugned Notification (of the Centre) of February, 2015 that the lG of the NCT of Delhi shall in respect of matters connected with Services exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President is neither illegal nor unconstitutional.”
Nine petitions arising out of the tussle between the lG and the Delhi Government were heard together by the Bench headed by the Chief Justice, which concluded hearing arguments in May this year.
Reacting to the HC order in favour of Jung, Deputy Chief Minister Manish Sisodia said, “We fully respect the Delhi High Court but we have a constitutional right to disagree with their verdict and will approach the Supreme Court.”
Earlier, Delhi Government senior standing counsel Rahul Mehra also said they will immediately file a Special leave Petition against the judgment in the SC.
The Bench also held that it was mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the lG even in relation to the matters in respect of which power to make laws has been conferred on the legislative Assembly of NCT of Delhi.
Following its decision, the court declared as illegal all Commissions of Inquiry appointed without the approval of the lG such as the Commission of Inquiry for looking into all aspects of the award of work related to grant of CNG Fitness Certificates, the Commission of Inquiry to probe allegations regarding irregularities in the functioning of Delhi and District Cricket Association, appointment of public prosecutors, discoms, implementation of circle rate of property and stamp duty chargeable on agricultural land and the city Government empowering the Delhi Electricity Regulatory Commission to impose fine on discoms in the event of disruption of power supply and compensation payable.
The court also held as illegal the appointment of Nominee Directors of Government of NCT of Delhi on Board of BSES Rajdhani Power limited, BSES Yamuna Power limited and Tata Power Delhi Distribution limited by the Delhi Power Company limited on the basis of the recommendations of the Chief Minister of Delhi without communicating the decision to the lG for his views
The court said, “It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the lG even in relation to the matters in respect of which power to make laws has been conferred on the legislative Assembly of NCT of Delhi.
“The matters connected with Services fall outside the purview of the legislative Assembly of NCT of Delhi,” the Bench ruled.
The court also upheld the notification of the Centre that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government. The Bench held that the notification was to be in accordance with “the constitutional scheme and warrants no interference”.